Court favors Ehrlich on ban

Nick Madigansun reporter

A three-judge panel of the 4th U.S. Circuit Court of Appeals handed The Sun a defeat yesterday in its lawsuit against Maryland Gov. Robert L. Ehrlich Jr. that challenged his ban on talking with two Sun reporters.

The judges affirmed a lower court decision that rejected the newspaper's claim that the reporters' First Amendment rights had been violated by an Ehrlich order, issued Nov. 18, 2004. It banned state executive branch employees from speaking with Sun reporter David Nitkin and columnist Michael Olesker, who has since left the paper.

The decision brought to a close an extended legal battle over that order. Timothy A. Franklin, editor of The Sun, said the paper will not appeal the decision.

The governor had contended that the two journalists had been unfair in their coverage of him and his administration, and sought to inhibit such coverage by denying them access to his staff.

But in their ruling, 4th Circuit judges J. Michael Luttig, Paul Niemeyer and William B. Traxler Jr. said they could not accept the newspaper's argument that the governor's directive "created a chilling effect any different from or greater than that experienced by The Sun and by all reporters in their everyday journalistic activities."

The judges said the reporters "have not been chilled to any substantial degree in their reporting, as they have continued to write stories for The Sun, to comment, to criticize, and otherwise to speak with the full protection of the First Amendment."

In a statement issued by his office yesterday, Ehrlich asserted that the ruling confirmed his contention - denied by the newspaper - that Nitkin and Olesker had been biased against him in their reporting. Ehrlich said the court's ruling "goes to the heart of this issue - the responsibility of every member of the press to report in a fair and objective manner, and the right to hold accountable those journalists who fail to adhere to these basic tenets of journalistic integrity."

The ruling did not, in fact, address the journalistic principle of fair and objective reporting, and did not accuse Nitkin and Olesker of failing to abide by it. In essence, the judges weighed whether the reporters had been prevented from doing their jobs and concluded that they had not.

Nevertheless, Ehrlich asserted in his statement that a decision a year ago by U.S. District Judge William D. Quarles Jr. that granted the governor's motion to dismiss the case, and the appeals court's affirmation yesterday, "upholds my decision to issue the directive regarding the two Sun journalists."

Ehrlich said the latest ruling "hopefully puts this matter to rest."

Franklin said yesterday that the paper had "fought a long and principled fight" to assert the First Amendment principles involved in the case.

Franklin said he still believed the governor should not be allowed to "retaliate against any citizen, not just a journalist, based on what they say or what they write."

"We don't agree with the ruling at all, but we've decided not to take it up to the U.S. Supreme Court on appeal," Franklin said. "We don't want this case to be an issue in the 2006 governor's race."

The coverage of that campaign, Franklin said, "will be aggressive, thorough and balanced."

The ban's existence continues to affect the working relationship between Ehrlich's administration and Maryland's largest newspaper. Specifically, it has an impact on Nitkin, who is now the paper's state political editor and continues to write about state politics.

"I'm terribly disappointed by the decision," Nitkin said. "I'm thankful that the managers of The Sun took this case so seriously and fought it so hard. It's a hard decision to swallow, but I will, and I'll move on. All we ever wanted was for the ban to be lifted."

The ban is no longer of consequence to Olesker, a columnist at The Sun who resigned Jan. 3 in an unrelated matter - the revelation that he had used passages in some columns that he had lifted from other publications.

The appeals court ruling yesterday focused on a concession by The Sun's lawyer, Charles D. Tobin. He had acknowledged in an appeals court hearing in Richmond, Va., that there were limits to what a journalist, or anyone else, could expect from the government, and that there was nothing anyone can do to compel a public official to speak with a specific journalist.

"The Sun conceded that a public official's selective preferential communication to his favorite reporter or reporters would not give the much larger class of unrewarded reporters retaliatory claims," the judges wrote. "This concession acknowledges that government officials frequently and without liability evaluate reporters and reward them with advantages of access."

Tobin said yesterday that the judges appeared not to have agreed "with our distinction between giving preferred access on the one hand and singling someone out for punishment on the other." He said the appeals court apparently believed that "it's OK for the governor to retaliate in the rough-and-tumble of the political process."

"The problem with that decision," Tobin said, "is that we don't usually let constitutional rights get sorted out" in that process.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said she was not surprised by the ruling.

"I knew this was going to be a challenge for The Sun to win this case," said Dalglish, a Maryland resident and a former reporter and editor at the St. Paul, Minn., Pioneer Press. "But I still find it amazing that more people haven't stood up and said that what the governor did was idiotic and immature."